State v. Crane, S-90-1085

• Citation: 480 N.W.2d 401,240 Neb. 32
• Decision Date: 21 February 1992
• Docket Number: No. S-90-1085,S-90-1085
• Parties: STATE of Nebraska, Appellee, v. Wayne J. CRANE, Appellant.
• Court: Nebraska Supreme Court

Page 401

480 N.W.2d 401

240 Neb. 32

STATE of Nebraska, Appellee, v. Wayne J. CRANE, Appellant.

No. S-90-1085.

Supreme Court of Nebraska.

Feb. 21, 1992.

Syllabus by the Court

1. Prior Convictions: Collateral Attack. As a procedural matter, a criminal defendant cannot collaterally attack a prior conviction in an enhancement proceeding.

2. Prior Convictions: Collateral Attack: Appeal and Error. Challenges to the constitutional validity of a prior plea-based conviction offered for enhancement purposes may be raised only in a direct appeal or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid.

3. Prior Convictions: Records: Right to Counsel: Waiver. A criminal defendant may challenge a prior plea-based conviction in an enhancement proceeding based on the transcript's failure to disclose whether the defendant had or waived counsel at the time the plea was entered.

4. Prior Convictions: Evidence: Waiver: Collateral Attack. A challenge to a prior plea-based conviction based on a lack of evidence that the defendant voluntarily and intelligently waived his rights to confront his accusers, to exercise his privilege against self-incrimination, and to a trial by jury constitutes a collateral attack on the prior conviction.

Rex R. Schultze and Maureen L. Allman, of Perry, Guthery, Haase & Gessford, P.C., Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, and SHANAHAN, JJ.

PER CURIAM.

This is a criminal case in which the State alleged in a three-count complaint that on July 25, 1988, the defendant-appellant, Wayne J. Crane, committed the crimes of second-offense driving while under the influence of alcoholic liquor, in violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1988); driving left of center, in violation of Neb.Rev.Stat. § 39-620 (Reissue 1988); and improper passing, in violation of Neb.Rev.Stat. § 39-624 (Reissue 1988). Crane pled not guilty to all three counts and waived his right to a jury trial. His case was tried to the Lancaster County Court on a set of stipulated facts. On August 10, 1989, the trial court found Crane guilty of the driving left of center and improper passing charges, as well as guilty of the underlying offense of driving while under the influence.

The trial court held an enhancement hearing on September 29, 1989, at which the State offered evidence that Crane had pled guilty to driving while under the influence in 1979. The State's evidence revealed that the incident occurred on February 13, 1979; that the Lancaster County Court received Crane's plea on April 17, 1979; and that Crane was represented by counsel at the time.

The trial court in this case received the evidence regarding Crane's 1979 conviction over his objection that it could not provide the basis for enhancing his current conviction because the 1979 record lacks any showing that he voluntarily and intelligently waived his rights, as required by the U.S. Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Having overruled Crane's objection, the trial court found Crane guilty of second-offense driving while under the influence and entered a judgment of conviction accordingly.

On April 3, 1990, the trial court overruled Crane's motion to vacate the September 29, 1989, ruling and sentenced him to 30 days in the county jail, revoked his operator's license for 1 year, and imposed a $500 fine on count I; imposed a $25 fine on count II; and imposed a $25 fine on count III. Crane appealed to the Lancaster County District Court, which affirmed the judgment and sentences of the trial court.

Crane perfected an appeal to this court and argues that the trial court abused its discretion by (1) enhancing his driving while under the influence sentence based on a prior conviction, where the record fails to show that he voluntarily and intelligently waived his rights, as required by Boykin, supra, and (2) enhancing his sentence when there is presently no procedure in place to challenge the constitutional validity of the conviction on which the enhancement is based.

Before discussing Crane's assignments of error, we note that during oral argument questions from the bench strongly suggested that Crane's 1979 conviction occurred more than 10 years prior to his current conviction and thus could not provide the basis for enhancement of the current charge. See Neb.Rev.Stat. § 39-669.07(4)(b)(i) (Reissue 1988). A closer reading of the statute reveals, however, that the 10-year period is measured as of the dates the offenses occurred and not the dates of conviction. See Neb.Rev.Stat. § 39-669.07 (Reissue 1988). Because the offenses in this case occurred on February 13, 1979, and July 25, 1988, respectively, the 10-year limitation is not implicated.

Crane argues that because the record of his 1979 plea lacks any indication that he voluntarily and intelligently waived his rights, as required by Boykin, it cannot provide the basis for enhancement of his current conviction. For this proposition he relies primarily on a decision of the U.S. District Court for the District of Nebraska granting the habeas corpus petition of a person convicted of third-offense drunk driving based on two prior plea-based convictions violative of Boykin. See Oliver v. Spire, No. CV89-L-149, 1989 WL 230917 (D.Neb. Sept. 10, 1990). Crane further argues that his inability to challenge the constitutional validity of the prior conviction at the enhancement hearing because of our earlier holding in State v. Oliver, 230 Neb. 864, 434 N.W.2d 293 (1989), which limits collateral attacks on prior plea-based convictions to direct appeals of those convictions or separate proceedings instituted for that purpose, violates his due process rights. In short, Crane argues that the federal court's holding indicates that our decision in Oliver is incorrect and should be overturned. We disagree.

We believe the federal court misread our decision in Oliver in granting the habeas corpus petition of the defendant in that case. The federal court concluded that Oliver did not "clearly and expressly" rest on a state procedural bar. Instead, the court suggested that Oliver stands for the proposition that proof of the presence or waiver of counsel is sufficient to establish the constitutional validity of a guilty plea offered for enhancement purposes. That is not what we held in Oliver.

We have repeatedly held that, as a procedural matter, a defendant cannot collaterally attack a prior conviction in an enhancement proceeding and that challenging a prior plea-based conviction based on the lack of a Boykin-type colloquy constitutes a collateral attack. See, State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989); State v. Davis, 224 Neb. 518, 398 N.W.2d 729 (1987); State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985); State v. Baxter, 218 Neb. 414, 355 N.W.2d 514 (1984). We do, however, allow challenges to prior plea-based convictions offered for enhancement purposes based on the transcript's failure to disclose whether the defendant had or waived counsel at the time the pleas were entered. See State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). We do so because we do not regard such a challenge as a collateral attack on the former judgment. Id. One could also challenge the constitutional validity of a prior conviction through a separate proceeding, such as an action for declaratory judgment.

In Oliver, the State's evidence showed that the defendant was represented by counsel during each of his prior convictions. Therefore, his only basis for challenging the validity of those convictions for enhancement purposes was the lack of a Boykin-type colloquy. In affirming the trial court's decision, we simply reaffirmed our procedural rule barring such a collateral attack in an enhancement proceeding.

Here, Crane's attempt to challenge the 1979 plea based on the lack of any indication that he voluntarily and intelligently waived his Boykin rights constitutes a collateral attack on the prior conviction and is thus barred by our holding in Oliver. The State's evidence indicates that Crane pled guilty to driving while under the influence of alcoholic liquor in 1979 and that he was represented by counsel at that time. Based on that evidence, the trial court could reasonably conclude that Crane's current conviction is his second such conviction, and therefore, the trial court did not abuse its discretion in entering the judgment and sentence it did. The decision of the Lancaster County District Court is affirmed.

AFFIRMED.

GRANT, J., participating on briefs.

FAHRNBRUCH, J., not participating.

WHITE, Justice, dissenting.

Today, the majority continues its refusal to recognize any legitimate or practical procedure for challenging, in an enhancement proceeding, the constitutional validity of a prior plea-based conviction. Because this refusal renders illusory the fundamental rights recognized in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), I renew my dissenting opinion previously stated in State v. Oliver, 230 Neb. 864, 434 N.W.2d 293 (1989).

SHANAHAN, Justice, dissenting.

What the majority characterizes as a procedural bar, that is, "our procedural rule barring" inquiry into a defendant's prior plea-based conviction, is actually a very real denial of a substantive right of constitutional stature. The majority maintains that since inquiry into constitutional validity of a defendant's prior plea-based conviction is a procedural matter, a defendant's inquiry into a prior conviction may be barred by procedural default, that is, failure to invoke and adhere to a procedure available to examine the constitutional validity of a prior conviction. Can there be a procedural default, namely, noncompliance with a prescribed and valid procedure, when in fact no procedure exists? Is it possible to have...